State v. Berryhill
| Decision Date | 23 October 1997 |
| Docket Number | No. 95-KA-00289-SCT,95-KA-00289-SCT |
| Citation | 703 So.2d 250 |
| Parties | STATE of Mississippi v. Anthony Mark BERRYHILL a/k/a "MOP". |
| Court | Mississippi Supreme Court |
Michael C. Moore, Attorney General, Marvin L. White, Jr., Asst. Atty. Gen., Leslie S. Lee, Special Asst. Atty. Gen., Jackson, for appellant.
Terry Lynn Wood, Corinth, for appellee.
Before PRATHER, P.J., and BANKS and SMITH, JJ.
BANKS, Justice, for the Court:
¶1 In this case we consider for the first time whether a capital murder indictment which is predicated upon the underlying crime of burglary must specifically state the intended felony which comprises the charged burglary. We conclude that such capital murder indictments must contain an allegation of the specific criminal intent that constitutes
an element of the burglary. Accordingly, we affirm the trial court's judgment below to that effect.
¶2 On March 1, 1994, Anthony Mark Berryhill was indicted for capital murder while engaged in the commission of a burglary, attempted kidnaping of a child, possession of a firearm by a convicted felon, and as an habitual offender. Berryhill had murdered his girlfriend in the home of their child's babysitter on January 21, 1994. The trial court eventually severed the kidnaping and firearm charges pursuant to a pretrial motion.
¶3 On May 31, 1994, well prior to trial, Berryhill moved through counsel to quash the indictment, or alternatively demur on the ground that it did not charge which underlying offense comprised the charged burglary. 1 Before the trial court ruled on that motion, Berryhill filed a Motion to Specify Underlying Offense on September 23, 1994. At the direction of the court, the State responded by letter dated October 14, 1994, advising Berryhill that the felony underlying the burglary count in the indictment was intent to commit an assault.
¶4 On February 8, 1995, the State sent Berryhill a second letter in which it advised him that it may attempt to prove the burglary on the basis of an underlying kidnaping or attempt to commit kidnaping in addition to the intent to commit an assault. This letter was dated five days prior to the beginning of Berryhill's trial. The day before the trial, the court inquired of the State its intentions on the burglary charge, and was told after "some conversation in chambers ... that the State would proceed with the intended crime of assault."
¶5 Berryhill's jury was selected and sworn in on February 13. The trial court then took up more motions. Berryhill renewed his Motion to Quash and/or Demur to the indictment because it failed to state the offense that underlay the burglary count. Berryhill explained to the court that he had first received information from the State that he would have to defend against a charge of burglary with the intent to commit an assault, and then was later informed that he might have to defend against burglary with intent to commit kidnaping or attempted kidnaping. He complained that he had not been given accurate or adequate notice by the indictment, and also that the State was trying to avoid the constitutional requirement that a grand jury present a person with criminal charges. 2 The State argued that Berryhill's motion was untimely, and that capital murder/burglary indictments were not required to state the offense which comprised the burglary charge.
¶6 The trial court granted Berryhill's motion from the bench that afternoon, February 14. Finding the indictment insufficient in regard to the burglary charge since the charge did not state the underlying crime, the court quashed the capital portion of the indictment. The State was invited to proceed on simple murder. Both parties then approached the bench with a plea bargain. Berryhill immediately thereafter pled guilty to simple murder, and was sentenced to life without parole as an habitual offender. The State lodged no objection to the guilty plea, although it did assert that it was "aggrieved" by the court's ruling to quash the capital aspect of Berryhill's indictment.
¶7 The State presently appeals the trial court's ruling under the authority of Miss.Code Ann. § 99-35-103 (1994). It argues that the ruling was erroneous inasmuch as Berryhill's motion was filed after the issuance of the venire facias, and was further erroneous since capital murder indictments predicated on burglary need not state the felony underlying the burglary aspect. The State's brief does not contain a prayer for relief, so we have assumed that it is seeking a pronouncement from this Court on the
requirements of capital murder indictments where the underlying crime is burglary and the power of the trial court to grant a motion to quash after a jury has been impaneled.
¶8 As a preliminary matter, Berryhill contends that the State has no authority to prosecute this appeal. Miss.Code Ann. § 99-35-103, the vehicle for criminal appeals taken by the State, provides in relevant part as follows:
The state or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a criminal cause in the following cases:
(a) From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense.
¶9 Berryhill contends that since the trial court in this case did not quash the entire indictment but merely the capital portion, the State has no authority under this provision to appeal. He asserts that the court's ruling did not represent a final judgment against the defendant, but merely granted him partial relief from the capital portion of the indictment. Not having filed any reply brief, the State made no response to this argument.
¶10 We hold that Miss.Code Ann. § 99-35-103 includes instances such as these, where the trial court has quashed a portion of the indictment. The trial court's quashal was in fact the final judgment on the capital murder charge, in that the "judicial labor [wa]s at an end" with regard to that charge. State v. Burrill, 312 So.2d 1, 3 (Miss.1975) (quoting Slatcoff v. Dezen, 72 So.2d 800, 801 (Fla.1954)).
¶11 That said, we proceed to the merits of the State's appeal.
¶12 The State first appeals the trial court's decision to grant Berryhill's Motion to Quash on the ground that it was untimely filed, and thus erroneously granted. It cites Miss.Code Ann. § 99-7-21 (1994):
All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases. The court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared.
The State also cites § 99-7-23 (1994):
All objections to an indictment for any defect dehors the face thereof, presenting an issue to be tried by the court, shall be taken by motion to quash the indictment, and not otherwise, within the time allowed for demurrer, and with the right to amend, as provided in the last preceding section.
¶13 On the basis of these authorities, the State contends that since Berryhill raised his Motion to Quash after the impanelment of the jury, his motion was untimely and should have been denied as such.
¶14 Berryhill responds that his motion was timely because his Motion to Quash was first filed five months before the issuance of venire facias. He further argues that an objection to the sufficiency of an indictment can be raised at any time.
¶15 The record is plain that the Motion to Quash was filed well before the issuance of the venire facias, which occurred on or about January 24, 1995. Having been assured by letter that the burglary count was predicated on an underlying assault, Berryhill did not press the court to rule on that motion. It was only after the State suggested that it might try to prove other underlying felonies, none of which appeared in the capital murder indictment, that Berryhill renewed his Motion to Quash. We therefore ¶16 Furthermore, this Court has squarely held that challenges to the substantive sufficiency of an indictment are not waivable. Thus, they may be first raised at anytime, including on appeal. See Copeland v. State, 423 So.2d 1333 (Miss.1982) (). See also Burchfield v. State, 277 So.2d 623 (Miss.1973); Monk v. State, 532 So.2d 592 (Miss.1988), superseded by rule on other grounds (objection to an indictment that failed to charge an essential element of the crime sought to be charged may be raised for the first time on appeal). In light of that alternative authority, we easily conclude that Berryhill's motion, alleging as it did a substantive defect of his indictment to state the essential elements of the crimes charged, was not untimely presented, and the trial court was not in error in addressing the motion.
find that the motion was timely within the constraints of § 99-7-21. 3
¶17 The State next argues that the trial court's ruling was erroneous because capital murder indictments that are predicated on burglary are not further required to state the felony that comprises the burglary. It contends that since the language of the capital murder statute only requires that a murder be committed in the course of one of the enumerated felonies, in this case burglary, a capital murder indictment that tracks that language is sufficient. Berryhill responds that such an indictment must be required to state the underlying felony in order to adequately advise a defendant what he must defend against, and to ensure that any charges lodged against a defendant at trial have been presented by a grand jury.
¶18 The trial court, in its discussion from the bench, ruled that...
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Spicer v. State, No. 2003-DP-02281-SCT.
...to the sufficiency of an indictment will not be procedurally barred and may be raised for the first time on appeal. State v. Berryhill, 703 So.2d 250, 253 (Miss.1997). For support of his argument, Spicer cites Apprendi v. N.J., 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring ......
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Edwards v. State, 97-DP-00566-SCT.
...an indictment, either through amendment or variance of the proof at trial without the concurrence of the grand jury." State v. Berryhill, 703 So.2d 250, 258 (Miss.1997). The test of whether a change to the indictment is one of substance is "whether or not a defense under the indictment of i......
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Turner v. State
...that he had fair notice with which to prepare his defense. For support of this argument, Turner relies heavily upon State v. Berryhill, 703 So.2d 250 (Miss.1997). ¶ 36. Berryhill is readily distinguishable from the facts in the instant case. In Berryhill, Anthony Berryhill was indicted for ......
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Gray v. State, 96-DP-00241-SCT.
...facts constituting the offense of capital murder. s 174. Most recently the Court has spoken to this issue in State of Mississippi v. Berryhill, 703 So.2d 250 (Miss.1997). There the defendant was charged with capital murder while engaged in the commission of a burglary. The Court held "that ......